What ketchup on a hot dog can teach employers about at-will employment

Heck, if it were up to me, I’d fire anyone who put ketchup on a hot dog. It seems that would be consistent with the at-will employment doctrine. Under the at-will employment doctrine, if the employee doesn’t have a contract of employment for a specific term, that employee can be fired without just cause or warning.

So, I can fire any employee for putting ketchup on a hot dog, right? Well, it depends…

It depends on whether the employee was putting ketchup on a hot dog at work or at home. Indeed, in some states like California, there are off-duty conduct laws which prohibit an employer from using legal off-the-clock behavior — like putting ketchup on a hot dog — as a basis to terminate employment.

It depends on whether the employee suffered an allergic reaction from the hot dog with ketchup that resulted in an overnight stay in the hospital. That employee may then have certain rights under the Family and Medical Leave Act.

It depends on whether a number of employees snuck in ketchup to protest the mustard-and-hot-dog-only working conditions the company imposed at work. Firing employees who speak out about working conditions could violate the National Labor Relations Act.

It depends on whether putting ketchup on a hotdog is a reasonable accommodation required to allow someone with a condiment-related disability — yes, I’m reaching here — to perform the essential functions of the job. In that case, a firing could violate the Americans with Disabilities Act.

It depends on whether the employee has a sincerely-held belief regarding ketchup on a hot dog. If allowing the employee to apply ketchup to a hot dog doesn’t create undue hardship for the employer, then the company may run into religious discrimination issues under Title VII.

It depends on whether an employee uses ketchup to fend of a workplace sexual harasser’s advances with a hot dog. That employee — really reaching here — could have a Title VII retaliation claim.

It depends on whether the employee is returning from military service. Even if that employee raves about the hot dogs with ketchup in Afghanistan, that employee may have an absolute right under USERRA to return to work.

So what can employers take away from this pre-Memorial Day post?

(Well, you can take my condiment survey. Or don’t. This isn’t Communist Russia. Probably a lot of ketchup and hot dogs going on there. But, I digress…)

There are many exceptions to at-will employment.

Notwithstanding the bulleted list above, in most situations, you can fire an employee for putting ketchup on a hot dog.

CONTRIBUTOR:

Eric B. Meyer

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Principal Partner of a national law firm, FisherBroyles, LLP, I’m here to help. I'm not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.